Back to the Drawing Board for EEOC Wellness Program Rules

On August 22 the U.S. District Court in D.C. granted summary judgment to the AARP which challenged the EEOC’s rules governing employer wellness programs. The rules allow an employer to offer or impose on an employee financial incentives or financial penalties depending on participation in an employer wellness program. The Court chose not to vacate the EEOC’s rules for the time being, but instructed the EEOC to explain its rationale for setting a 30% maximum on the incentive or penalty, which would be applied to the employee‘s premium cost,  to determine whether disclosure of the employee’s personal medical information is voluntary, instead of determining that any employer wellness program requiring disclosure of personal medical information is involuntary and therefore unlawful. AARP v. U.S. EEOC, (D.D.C. Aug. 22, 2017).

Under ACA, health insurance plans may lawfully offer an incentive of up to 30% of the cost of coverage, in exchange for the employee’s participation in a health-contingent wellness program. These employer-sponsored wellness programs often involve the collection of personal medical information, which implicates substantive protections of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), both enforced by the EEOC.

Both the ADA and GINA permit employers to collect personal medical information as part of a wellness program if the employee provides the information voluntarily. In May 2016, the EEOC issued an ADA rule stating that imposing a penalty or offering an incentive capped at 30% of the cost of self-only coverage that requires disclosure of ADA-protected information, does not render participation in the wellness program involuntary. Similarly, the EEOC issued a GINA rule allowing employers to offer the same 30% incentives for disclosure of a spouse’s medical information in the course of wellness program participation.

In 2016 AARP sought a preliminary injunction prohibiting enforcement of the ADA and GINA rules which became effective January 1, 2017. The EEOC’s arguments in opposition to the injunction were:

  • The 30% incentive level is in harmony with the ACA incentive level.
  • The 30% incentive level is a reasonable interpretation of “voluntary” based on current insurance rates.
  • The EEOC relied on comments submitted by the American Heart Association endorsing the 30% incentive level.

The Court determined that the EEOC provided inadequate explanation for determining that a 30% penalty or incentive is an appropriate measure of voluntariness. The Court remanded the rules to the EEOC but without vacating them to avoid disrupting current wellness programs. The Court ordered the EEOC to report back to the Court by September 21, 2017.

If you have any questions or would like to discuss how this decision or the EEOC’s wellness program rules affect you or your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Labor Law Practice Group  at 973-535-7129 or pmcgovern@nullgenovaburns.com, Firm Counsel Gina M. Schneider, Esq. at 973-535-7134 or gmschneider@nullgenovaburns.com, or Firm Associate Ryann M. Aaron, Esq. at 973-387-7812 or raaron@nullgenovaburns.com.

EEOC Releases 2016 Enforcement Data: Charges Increase, Downward Trend in Litigation & Monetary Recovery, LGBT Charges Highlighted

Each year, the U.S. Equal Employment Opportunity Commission (EEOC) releases data detailing the charges of workplace discrimination it receives, the number of enforcement suits filed and resolved, and any areas of targeted investigations and compliance initiatives from the prior year.  On January 18, 2017, the EEOC released its Fiscal Year 2016 Enforcement and Litigation Data summarizing its findings.

Rising Number of Discrimination Charges – According to the EEOC, in 2016 it received 91,503 charges of discrimination, making 2016 the second consecutive year that the agency has seen an increase in the number of charges.  2016 also marks the third consecutive year in which retaliation was the most frequently filed charge.  Below is a chart summarizing the EEOC’s breakdown of the categories of charges filed in 2016 along with a comparison to those charges filed in New Jersey and New York:

  National New Jersey New York
Retaliation:  

42,018 (45.9%)

 

731 (1.7% of total Retaliation charges in US)  

1,604 (3.8% of total Retaliation charges in US)

 

Race:  

32,309 (35.3%)

 

624 (1.9% of total Race charges in US)  

1,084 (3.4% of total Race charges in US)

 

Disability:  

28,073 (30,7%)

 

583 (2.1% of total Disability charges in US)  

1,061 (3.8% of total Disability charges in US)

 

Sex:  

26,934 (29.4%)

 

500 (1.9% of total Sex charges in US)  

1,202 (29% of total Sex charges in US)

 

Age:  

20,857 (22.8%)

 

437 (2.1% of total Age charges in US)  

865 (4.1% of total Age charges in US)

 

National

Origin:

9,840 (10.8%)

 

254 (2.6% of total National Origin charges in US)  

601 (6.1% of total National Origin charges in US)

 

Religion:  

3,825 (4.2%)

 

104 (2.7% of total Religion charges in US)  

180 (4.7% of total Religion charges in US)

 

Color:  

3,102 (3.4%)

 

42 (1.4% of total Color charges in US)  

208 (6.7% of total Color charges in US)

 

Equal Pay:  

1,075 (1.2%)

 

Info not available Info not available
Genetic

Information:

 

238 (.3%) Info not available Info not available

Steady Increase in Charges Filed by LGBT Individuals – For the first time, the EEOC included details in its year end summary about sex discrimination charges filed specifically by members of the LGBT community.  In fiscal year 2016, it settled 1,650 of such charges, recovering $4.4 million.  This accounts for roughly 40% of the 4,000 sex discrimination charges filed by LGBT individuals since fiscal year 2013, which indicates a notable, steady rise in the number of charges filed by members of the LGBT community.  Also trending are the issues involving transgendered employees’ restroom rights.  In July 2015, the EEOC ruled that denying an employee equal access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination violated Title VII of the Civil Rights Act, as does conditioning an employee’s such right on proof that the employee underwent a medical procedure, and/or restricting a transgendered employee to a single-user restroom.

Overall Decrease in Monetary Awards – The EEOC recovered a total of over $482 million in fiscal year 2016, down from the $525 million in 2015, broken down as follows:

  • $347.9 million for private-sector, state, and local government employees through mediation, conciliation, and settlements;
  • $52.2 million through litigations; and
  • $82 million for federal employees.

Downward Trend in Litigation – Over 76% of cases that were referred to mediation in 2016 were resolved successfully, though conciliation had a lower success rate of only 44%.  Litigation by the EEOC is experiencing a downward trend, with only 165 active cases on the EEOC’s docket at the end of 2016, as opposed to the 218 that existed at the end of 2015.  In addition, the EEOC filed only 86 lawsuits alleging discrimination in 2016, down from its 142 filed in 2015 and 133 in 2014.

New Online Charge Status System – The EEOC launched digital services allowing employers and charging parties to receive and file documents electronically, check the status of charges online, and communicate electronically with the EEOC.  These services are intended to streamline the charge process and reduce the number of paper submissions and phone inquiries, easing administrative burdens on the EEOC.  These changes may make it easier not only for the agency to handle more charges and resolve them more quickly, but for complainants to file them.

New ADA Regulations on Employer-Sponsored Wellness Plans – The EEOC issued regulations and interpretive guidance advising that employers may provide limited financial and other incentives in exchange for an employee answering disability-related questions or undergoing medical exams as part of a wellness program.

Employers should review the EEOC’s 2016 charge and enforcement data in order to remain vigilant when responding to complaints of harassment and/or discrimination in the workplace.  The EEOC’s statistics also reinforces the need for employers to train managers, supervisors, and employees on those policies.

For more information on the EEOC’s year-end summary, the EEOC’s strategy for future enforcement of federal employment discrimination statutes, or ways to ensure that your company is in compliance with the EEOC’s mandates, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

EEOC to Require Pay Data From Employers Starting in 2017

In an on-going effort to close the pay gap for women and minorities, on January 29, 2016, the Obama Administration announced that the U.S. Equal Employment Opportunity Commission (EEOC) will now require federal contractors and employers with 100 or more workers to provide data related to pay practices. Starting in September 2017, the EEOC will request data on pay ranges and hours worked for all employees in addition to the information collected on employer EEO-1 reports. The EEO-1 report, also known as the “Employer Information Report,” is a compliance survey mandated by federal statute and regulations which must be submitted and certified no later than September 30th, annually. The report currently requires federal government contractors and companies with 100 or more employees to disclose employment data to be categorized by race, ethnicity, gender and job category.  In addition, employers will must report job categories and pay bands but will not be required to report specific salaries of each individual employee.  Employers will also be required to report on the total W-2 earnings as the measure of pay.

The new requirement will provide the EEOC and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) with more insight into pay disparities across different industries and occupations as well as assist the agencies in investigating those employers who appear to be engaged in wage discrimination.  The EEOC’s announcement was made on the seventh anniversary of the Lilly Ledbetter Fair Pay Act which provides employees with a 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination after each paycheck.

The Obama Administration estimates that compliance with the new EEO-1 reporting requirements will cost less than $400 per employer the first year and a few hundred dollars per year after that.  The EEOC’s proposed revisions to the EEO-1 report were published as of February 1, 2016. Public Comment on the proposed changes will be open until April 1, 2016.

What This Means For Employers:

  • For the 2016 EEO-1 reporting cycle, all employers will submit information that is identical to the information collected by the currently approved EEO-1 report.
  • Starting in 2017, federal contractors and employers with 100 or more employees will submit the EEO-1 report with pay and related information before September 30th. These employers must report all W-2 earned income.
  • Although EEO-1 reporting is due on or before September 30th each year, the EEOC guidelines suggested that W-2 data can be imported into a human resources information system (HRIS), and a data field can be established to accumulate W-2 data for the EEO-1. Alternatively, employers could obtain this pay information by utilizing quarterly payroll reports for the previous four quarters. Employers that do their payroll in-house will be able to report this data utilizing most major payroll software systems or by using off-the-shelf payroll software that is preprogrammed to compile data for generating W-2s. For employers that outsource their payroll, there would be a one-time burden of writing custom programs to import the data from their payroll companies into their HRIS systems. Employers then must count and report the number of employees in each pay band. During the comment period, the EEOC seeks employer input with respect to how to report hours worked for salaried employees.
  • Beginning in 2017, all filers will be required to submit the proposed EEO-1 report electronically.

Given the EEOC’s new requirement, employers should start to audit their pay policies and practices as those employers who are engaging in pay disparity can expect an increase in pay discrimination cases based on the data collected as a result of the revised EEO-1 reports.

For more information regarding compliance with EEO-1 reporting obligations and how the new rule will affect your business, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

EEOC Issues Ruling on Workplace Sexual Orientation Discrimination

On July 15, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its ruling in Complainant v. Foxx finding that all types of discrimination based on sexual orientation are forms of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  The ruling is a victory for the Lesbian Gay Bi-Sexual and Transgender (“LGBT”) community and means that LGBT employees now have protection comparable to other employees in the workplace.  Previously, the EEOC limited sexual orientation discrimination claims to cases where workers alleged they were victims of stereotypes based on sex.

The case was brought by a federal air traffic control specialist in Miami, who contended he was denied a promotion because he was gay.  While the EEOC noted that the language contained in Title VII does not distinguish “sexual orientation” from “sex,” the EEOC found that there could no longer be a distinction between the two.  Further, the EEOC noted that “[a]n employee could show that the sexual orientation discrimination . . . experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex.”  According to the EEOC, to interpret the protections granted under Title VII as exclusionary with regard the LGBT community, is to incorrectly interpret Congress’s intent.  The EEOC also reasoned that that if Congress intended for the statute to apply solely to heterosexual individuals, a revision to the language would have already been made.  The EEOC based its ruling in part on the U.S. Supreme Court’s 1989 decision in PriceWaterhouse v. Hopkins, which held that is was a violation of Title VII to discriminate against an individual for failing to conform to gender-based stereotypes.

While the EEOC’s decision is persuasive, it is up to the federal courts to give weight to the EEOC ruling and decide whether to apply this ruling to claims by private-sector employees.  In many states, including New Jersey, it is already illegal for employers to discriminate on the basis of sexual orientation and gender identity in employment, education, housing and public accommodations.

On July 23, 2015, federal legislation to ban discrimination against LGBT individuals was introduced by U.S. Senator Cory Booker (D-N.J.) and 39 of his fellow Senators.  U.S. Sen. Robert Menendez (D-N.J.) is one of the bill’s co-sponsors. The new law, entitled the Equality Act of 2015, would explicitly add sexual orientation and gender identity to Title VII and would cover employment, housing, public accommodations, education, jury service and credit.

Employers’ Takeaways:

  • The EEOC’s decision extending Title VII’s protections to claims based on sexual orientation is binding on all federal agencies, departments and employees.
  • Both public and private employers should consider revising their non-harassment, non-discrimination and EEO policies and practices, to conform to the EEOC’s decision.
  • Employers must advise and train their managers and employees to ensure a work environment free of harassment, discrimination, or retaliation based on sexual orientation.

For more information regarding the EEOC’s decision and how it impacts your workforce, please contact John C. Petrella, Esq., Director of the firm’s Employment Litigation Practice Group at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.  This blog post was written with the assistance of Amanda Frankel.

Supreme Court: The EEOC Must Answer For Its Efforts To Conciliate

On Wednesday, April 29, 2015, the United States Supreme Court unanimously held that courts may review whether the United States Equal Employment Opportunity Commission (“EEOC”) fulfilled its obligations to engage in conciliation efforts with employers before filing lawsuits against them under Title VII. Writing for the unanimous Court in Mach Mining, LLP v. Equal Employment Opportunity Commission, 575 U.S. ___ (2015), Justice Elena Kagan rejected the EEOC’s argument that Title VII provided no standards by which a court might evaluate the sufficiency of the EEOC’s conciliation efforts. Justice Kagan emphasized the importance of conciliation within the scheme of Title VII and wrote that absent judicial review, “[t]he Commission’s compliance with the law would rest in the Commission’s hands alone.”

The case in Mach Mining was brought after a woman filed a Charge of Discrimination with the EEOC claiming that the company refused to hire her as a coal miner because of her sex. The EEOC thereafter found reason to believe that Mach Mining had also discriminated against a class of women who unsuccessfully applied for mining-related jobs. The EEOC notified Mach Mining that it intended to begin informal conciliation. After a year of discussions, the EEOC advised Mach Mining in 2011 that the conciliation process had failed, and filed a complaint in the district court. In its answer to the Complaint, Mach Mining argued that the EEOC had failed to conciliate in good faith. In response, the EEOC argued that its conciliation efforts were not reviewable by the court. The district court certified that issue for appeal to the Seventh Circuit. On appeal, the Seventh Circuit held that the EEOC’s conciliation efforts were not reviewable by the court. The Seventh Circuit found that allowing court review of the EEOC conciliation process would create an avenue for employers to bypass liability for discriminatory behavior. The Seventh Circuit’s decision created a circuit split, as the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits have all held that the EEOC’s duty to conciliate is reviewable to some extent.

The Supreme Court agreed to hear the case in June of 2014. The Court’s focus was whether Title VII’s broad grant of authority to the EEOC allowed room for judicial review of the conciliation process. The Justices sought to define a workable standard that would allow for limited review while still giving the EEOC wide discretion. In Wednesday’s opinion, the Court found that a court may review whether or not the EEOC “satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow,” and wrote further that the EEOC may still “determine the kind and amount of communication with an employer appropriate in any given case.” However, the Court determined that the EEOC’s “bookend” letters to Mach Mining were insufficient to prove that it had “actually, and not just purportedly, tried to conciliate a discrimination charge.”

To comply with Title VII, the Supreme Court held that “[a] sworn affidavit from the EEOC stating that it has performed [its conciliation obligations] but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.” Judicial review is limited to ensuring that the EEOC has sworn that it has performed the conciliation process, and weighing any evidence provided by the employer that the EEOC had not actually participated in the conciliation process as sworn.

Employers’ Takeaway: The decision by the Supreme Court in Mach Mining ensures that the EEOC must afford employers with an adequate opportunity to discuss and address any perceived Title VII violation through its conciliation process. The decision makes clear that it is not sufficient for the EEOC to merely notify employers of the alleged violation and then inform the employer that the conciliation process has ended. If your organization receives a “reasonable cause” finding, monitor what efforts the EEOC makes to conciliate and pursue voluntary compliance. If the EEOC fails to do so, employers may seek to compel the EEOC to make an effort compliant with its statutory obligations before the EEOC files suit. Employers, however, should note that the decision in Mach Mining explicitly gives the EEOC broad discretion in the conciliation process and the decision cannot be relied upon as an opportunity to challenge all EEOC conciliation efforts.

For more information regarding this case and to learn how your business can implement best practices when dealing with the EEOC, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpeteralla@nullgenovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Court Denies EEOC’s Requested Preliminary Injunction to Block Wellness Plan Biometric Testing

On November 3 U.S. District Court Judge Ann Montgomery gave Honeywell International a victory in Round One of the EEOC’s legal challenge to Honeywell’s wellness program, by refusing to grant the EEOC preliminary restraints barring Honeywell from imposing monetary penalties on employees who refuse to submit to biometric screening. Judge Montgomery reasoned that she was not prepared to decide whether the EEOC would prevail on the merits, and it would be easier to require Honeywell to reimburse employees for monetary penalties they suffer as opposed to blocking the penalties for now and assessing the penalties later if the wellness program is determined to be lawful. So for now, Honeywell’s biometric screening may continue.

If you have any questions about whether your company’s wellness program is compliant with the Affordable Care Act, HIPAA, the ADA or GINA, please contact Patrick W. McGovern, Esq., in our Employee Benefits Group at 973-535-7129, pmcgovern@nullgenovaburns.com.

EEOC Asks Court To Halt Biometric Testing Features of Corporate Wellness Program

On October 27, 2014 the Equal Employment Opportunity Commission asked the U.S. District Court in Minnesota to temporarily restrain Honeywell International’s wellness program from performing biometric testing on employees. The EEOC claims preliminary court relief is needed to prevent employees from suffering irreparable harm due to submitting to wellness program requirements. Employees can choose not to submit to biometric testing, which requires taking a blood sample, but making this choice will result in monetary penalties, ranging from a $500 surcharge to $1500 in extra premium contributions. A court hearing on the EEOC’s request for a preliminary injunction is scheduled for November 3 at the U.S. Court House in Minneapolis.

The EEOC claims that Honeywell’s biometric testing includes drawing blood, measuring body mass indexes, and screening for high blood pressure, diabetes, and smoking and therefore is an involuntary medical exam prohibited by the Americans with Disabilities Act (ADA). The EEOC also claims that the biometric testing violates the Genetic Information Nondiscrimination Act (GINA) by requiring disclosure of spousal medical history, and therefore family medical history.

On October 30 Honeywell filed its opposition to the EEOC’s petition and argues that its wellness program is voluntary and permissible under ADA provisions that allow employers to request medical examinations in connection with voluntary wellness programs. Honeywell also claims its program is covered by the ADA’s insurance safe harbor provision. It denies any violation of GINA since its wellness program makes no inquiry about family health industry, and argues that GINA expressly authorizes its biometric screening program.

If you have any questions about whether your company’s wellness program is compliant with the Affordable Care Act, HIPAA, the ADA or GINA, please contact Patrick W. McGovern, Esq., in our Employee Benefits Group at 973-535-7129, pmcgovern@nullgenovaburns.com.

EEO-1 Survey Deadline is Approaching

The annual deadline for the completion of EEO-1 surveys is September 30, 2014.  All employers subject to this requirement should have received (or will shortly receive) the reports from the Equal Employment Opportunity Commission (“EEOC”).   EEO-1 reports must be filed by all private employers with 100 or more employees and all federal government contractors or first-tier subcontractors with 50 or more employees and a contract or subcontract valued at $50,000 or more. Private employers with fewer than 100 employees are still subject to this requirement if the company is owned or affiliated with another employer, and both enterprises employ greater than 100 employees.  These reports help the federal government to identify employment data on race/ethnicity, gender and job categories.

The EEOC prefers that employers file the EEO-1 report electronically.  Employers can access the web-based EEO-1 form here: http://www.eeoc.gov/employers/eeo1survey/.  Employers who have previously filled out the survey will also receive a paper copy in the mail.  Instructions for the completion of the survey can be found on the EEOC’s website or attached to the form.

If you have any questions regarding the completion of this report, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@nullgenovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@nullgenovaburns.com.

New Jersey Employers Required to Post and Distribute Gender Equity Notice

More than a year after Governor Chris Christie signed legislation requiring many New Jersey employers to notify employees of their right to gender equality in compensation and benefits under existing state and federal law, New Jersey’s Department of Labor and Workforce Development (“NJDOL”) has finalized the mandatory notice.  Entitled “Right to be Free of Gender Inequity or Bias in Pay, Compensation, Benefits or Other Terms and Conditions of Employment,” the “gender equity notice” briefly summarizes the various state and federal prohibitions on employment discrimination based upon an individual’s sex, and directs employees to contact the United States Equal Employment Opportunity Commission (“EEOC”), New Jersey’s Division on Civil Rights (“NJDCR”), or the NJDOL for further information.

Beginning January 6, 2014, New Jersey employers with a total of 50 or more employees (regardless of whether those employees work inside or outside of New Jersey) will be required to do the following:

  1. Conspicuously post the gender equity notice (in English and Spanish) in a place accessible to all employees in each of the employer’s workplaces (which may include an employer’s internet or intranet site);
  2. Provide each employee who was hired on or before January 6, 2014 a written copy of the gender equity notice no later than February 5, 2014;
  3. Provide each employee who is hired after January 6, 2014 a written copy of the gender equity notice at the time of the employee’s hiring;
  4. Provide each employee with a written copy of the gender equity notice once per calendar year; and
  5. Provide each employee with a written copy of the gender equity notice upon their first request.

Employers may distribute the gender equity notice to employees, to satisfy requirements (2) through (5) above, through e-mail delivery, printed material, or through an internet or intranet website (so long as the site is for the exclusive use of all employees, can be accessed by all employees, and the employer provides notice to the employees of its posting).  In addition, the distribution of the gender equity notice must be accompanied by an acknowledgment that the employee has received, read, and understands its terms.  The employee must sign and return the acknowledgment to the employer within 30 days of receipt.

For more information on New Jersey’s new gender equity notice, and employers’ new requirement to post, distribute, and obtain employee acknowledgment, or for assistance in drafting your company’s employee acknowledgment, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Joshua E. Knapp, Esq., Associate in the Employment Law & Litigation Group, at jknapp@nullgenovaburns.com.

Lactation and Breast-Feeding Are “Pregnancy Related Conditions” Protected Under Title VII

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit issued a landmark decision finding that terminating a female employee because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978) (PDA).  The Court also found that lactation is a medical condition related to pregnancy.

Donnica Venters (“Venters”) took a leave of absence to give birth, and subsequently asked her supervisor whether she could use a breast pump at work.  Instead of responding to her inquiry, Venters was told that she was being discharged for job abandonment.  The EEOC filed suit claiming that Houston Funding discriminated against Venters based on her sex, including her pregnancy, childbirth, or related medical conditions (citing the language from the PDA).  The Fifth Circuit agreed that terminating Venters simply because she is lactating or expressing breast milk constitutes sex discrimination, and that an adverse action “motivated by these factors clearly imposes upon women a burden that male employees need not – – indeed, could not – suffer.”

The Fifth Circuit held that lactation is a physiological condition distinct to women who have undergone pregnancy and childbirth, and that men, as a matter of biological fact, cannot lactate. As such, the Court held that lactation is included in the term “pregnancy related conditions” and protected by Title VII and the PDA.  Female employees, who are lactating and/or breast-feeding, may now bring claims under Title VII and the PDA.  Employers should also be aware that the Affordable Care Act already amended the Fair Labor Standards Act (FLSA) to require an employer provide “reasonable time for an employee to express milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Employers must take their obligation to provide time and space to express breast milk seriously and must also take caution when considering taking adverse action against such employees.  The EEOC has made pregnancy- related limitations one of its six national priorities to address in the context of equal employment law, so employers should critically analyze any request or inquiry from employees regarding pregnancy or post-pregnancy accommodations to avoid unnecessary negative liability.

For more information on the implications of the EEOC v. Houston Funding II, Ltd. decision and other sex and pregnancy policies and regulations in the workplace, please contact Dena B. Calo, Esq, dcalo@nullgenovaburns.com, Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, or Jane Khodarkovsky, Esq., Associate in the Employment Law & Litigation Group, at jkhodarkovsky@nullgenovaburns.com.